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The great use of ad valorem duties in the act, 31. — Action of House 
and Senate, 33. — Consigned and assembled shipments, 33. — 
Forms of declaration at Secretary's discretion, 34. — Better statistical 
returns, 34. — Penalties strengthened, 35. — Some hardship for 
importers obviated, 36. — Ascertainment of foreign value, 38. — 
Protest fees required; contingent attorney fees prohibited, 38. — 
Character of hearings before General Appraisers, 40. — Fictitious 
oases by domestic manufacturers prevented, 41. — Penalties, 42. — 
Burden of proof in suits for value, 43. — Provisions on examination 
of books of foreigners and importers, 44. — Conclusion, 45. 

One of the most striking features of the new tariff 
is the wholesale adoption of the ad valorem method 
of assessing duties. Much may be said upon each side 
of the question of the rival merits of the ad valorem 
and the specific bases for levying duties; and Secre- 
taries of the Treasury have differed fundamentally 
upon this question. But there can be little discussion 
upon the relative difficulties of administration of the 
two, or upon the ease with which frauds may be prac- 
tised upon the revenue. The ad valorem method 
throws far greater difficulties in the path of the Treasury 
Department, both at the custom houses and abroad, 
and also immeasurably increases the opportunities, 
temptations, and facilities for fraud upon the part of 
the importer. As was aptly said by one of the ambassa- 

1 The revenue act of 1913 is entitled " An Act to reduce tariff duties and to provide 
revenue for the government, and for other purposes." Section I fixes the tariff duties. 
Section II levies the income tax. Section III, the one here under consideration, settles 
the administrative details of the tariff. Its paragraphs are listed under capital letters, 
A, B, C, D, and so on. Section IV contains miscellaneous provisions, — on trade 
agreements (quite innocuous); modifications affecting Cuba, the Philippines, and 
Porto Rico; drawback arrangements; and so on, in considerable number. 



dors at Washington from a foreign country where the 
specific method has been adopted; " We think our 
collectors can tell a pair of shoes from a grand piano very 
readily" : and he might have added, "and from a gallon 
of whiskey, or a ton of coal, or a yard of cloth, and can 
count, gage, weigh, or measure them with ease and 
exactness." On the other hand, it is no simple matter 
for an appraiser in Cleveland, let us say, to ascertain 
with entire accuracy the exact value of a bale of wool in 
Afghanistan upon a day months past (the day of ship- 
ment); which is the job that is required of him under 
the ad valorem system. And this job, the Underwood 
Act has increased to a somewhat terrifying extent. For 
example, Schedule A, comprising chemicals, oils and 
paints, included eighty-three paragraphs in the tariff of 
1909, of which fifty-eight were specific, eleven ad valorem, 
and fourteen both specific and ad valorem. The same 
Schedule in the act of 1913 includes seventy-one 
paragraphs, of which only twenty-two are specific, 
thirty-two being ad valorem and sixteen being both 
specific and ad valorem. And this illustration is typical 
of the whole measure. 

Now it early became obvious to Mr. Underwood and 
his associates that the proper protection and collection 
of the revenues upon the ad valorem basis would require 
a clothing of the collecting force with all the powers 
necessary to prevent and punish frauds in undervalua- 
tion. As a natural consequence the administrative 
sections, which found their origin in the Customs 
Administrative Act of 1890, amended in some partic- 
ulars by the Dingley act of 1897, and the Payne act 
of 1909, were gone over with the utmost care in order 
that the weak places might be strengthened and the 
powers of the government to get at the truth in matters 
of valuation might be made clear and summary. 


Altho the Sub-Committee of the Senate, influenced 
to a large extent by a committee purporting to repre- 
sent the sentiments of the Merchants Association of 
New York, apparently became imbued with the idea 
that a " conspiracy " existed to defeat the object of 
the lowered duties by harsh administrative provisions, 
and eliminated a larger number of the reforms found 
therein, a substantial number have been restored by 
the conferees and now appear in the law. 

The first of these changes is found in paragraphs C 
and D of Section III. This amendment requires that 
there shall be included within the general description 
of " purchased " merchandise, all articles concerning 
which " agreements for purchase " have been made, 
altho title has not actually passed. The purpose of 
this change undoubtedly was and its effect will be, 
to prevent the importation, upon a "consigned" form 
of invoice, of merchandise which has actually been made 
the subject of a bargain and sale. Thus the appraising 
officer will have the benefit of an intimate knowledge 
of the real transaction concerning the goods imported, 
a knowledge which in many instances he had been 
prevented from obtaining under the old law. 

Paragraph D also contains an amendment requiring 
the consulating of an invoice in the consular district 
where the merchandise is assembled for shipment, in 
cases where purchases are made in more than one 
district. This will obviously tend to avoid the present 
uncertainties as to the correct procedure in such cases 
and will benefit both the shipper and the government. 
It may be noted at this point that a later paragraph 
(X) amplifies the provision on assembled merchandise, 
by requiring that such invoices shall have attached 
thereto the original bills, invoices, or statements, 


showing the prices or expenses of each purchase or 
consignment. This will add materially to the labor 
required of the shipper of assembled merchandise, but 
it will only give the appraisers the amount of informa- 
tion to which they have always been entitled, but 
which they have been unable to get in many instances. 

The next important change is found in paragraph F, 
which abolishes the four rigid statutory forms for 
declarations which have heretofore been mandatory. 
In their stead is a provision that the declaration accom- 
panying the entry shall be upon a form "to be pre- 
scribed by the Secretary of the Treasury according 
to the nature of the case." This amendment will give 
flexibility to the requirements for declarations and will 
permit the Secretary to provide proper forms to cover 
the constantly changing conditions of business, and 
will require the importer to make a declaration true 
both in letter and spirit, — a requirement that is today 
not always possible of fulfilment. 

There is added to the paragraph also an authorization 
to the Secretaries of the Treasury and Commerce to 
establish lists of imported articles for statistical pur- 
poses, which must be used in making out the declara- 
tions upon entry; and it is made the duty of the consular 
officers to require such statistical information to be 
furnished at the time of consultation of the invoice. 
This reform is undoubtedly the result of the efforts of a 
joint committee of the Departments of the Treasury 
and of Commerce and Labor which had been at work 
for more than a year during the last administration 
upon the problem of improving our statistical returns 
of imports and exports. While it will require some 
additional clerical labor on the part of the foreign 
shippers and our own importers, it will be of consider- 
able value in augmenting the accuracy of our statistics, 
hitherto woefully lacking in that regard. 


Paragraphs G and H, which provide the penalties, 
criminal and civil, for fraudulent entries, replace 
subsections 6 and 9 of Section 28 of the Payne act. 
Each paragraph has been strengthened in order to 
bring within its terms various fraudulent acts of 
importers which have heretofore escaped without 
penalty, owing to loopholes or weaknesses in the exist- 
ing laws. The changes are aimed principally at the 
practice, so common hitherto, of having the entry and 
the declaration made by an office boy or an agent or 
broker, acting for the importer, from whom all knowl- 
edge concerning the facts of the transaction is carefully 
kept. Under the old law it was practically impossible 
for the government to fix the liability for frauds thus 
accomplished; now the person who makes the entry 
and every person who aids or procures its making will 
be held strictly accountable for the truth of the facts 
therein recited. In other words, the new law has real 
teeth, to take the place of sham ones that had been 
filed away by court decisions. Importers and their 
agents would do well to study the provisions of these 
paragraphs before making entry, for while they do not 
require anything more than the exact truth, they do 
require this, without equivocation. Incidentally there is 
an added proviso which will prevent what are called 
" general order " goods from retaining the immunity 
from forfeiture which they now apparently enjoy. 
That is, merchandise which has been shipped from 
abroad accompanied by a false invoice, but of which no 
entry has been made at the port of arrival, will be held 
to be the subject of an attempt to enter by fraud, and 
consequently liable to the ordinary forfeiture provisions. 
Under the old law (unless a case now on appeal in the 
Supreme Court should be reversed) an importer whose 
fraud was discovered prior to the arrival of the goods, 


could escape all consequences by merely letting them 
go, without formal entry, to the " general order " 

Two changes are made in Paragraph I. The first is 
of no real importance, — an insertion to the effect that 
an importer may make an addition or deduction to or 
from the invoice value of his merchandise at the time of 
making entry " but not after either the invoice or the 
merchandise has come under the observation of the 
appraiser." The change in language from the act of 
1909 is slight, and in practical administration will be 
nil, as a practice had grown up under the rulings of the 
Treasury Department by which the language of the 
Payne law was construed to mean exactly what is now 
inserted in the Underwood bill. A very substantial 
amendment, however, made in conference, provides 
that an importer may, by direction of the Secretary 
of the Treasury, have his duty assessed upon an amount 
less than the entered value, provided that the importer 
certifies at the time of entry that the entered value is 
higher than the foreign market value, and that the goods 
are so entered in order to meet advances by the appraiser 
in similar cases then pending upon an appeal for re-ap- 
praisement, and provided further that the importer's 
contention shall be sustained by final decision upon 
such re-appraisement, and it shall appear that his action 
was taken in good faith after due diligence and inquiry 
upon his part. The Secretary is also required to 
accompany his directions with a statement of his 
conclusions and his reasons therefor. 

Undoubtedly this provision will prevent the hardship 
under which a few importers were placed by the pro- 
visions of the Payne law in cases where they have had 
an honest disagreement with the appraiser's officers 
as to the true value of the imported merchandise. 


Under the Payne law (which is copied exactly in this 
section of the Underwood bill, with the above proviso 
added) if an entry is made at too low a valuation, and is 
raised by the appraiser and sustained by the general 
appraisers upon appeal, the importer must not only 
pay the increased duty to be assessed upon the higher 
valuation but also an additional duty of 1 per cent for 
every 1 per cent of undervaluation, not exceeding 
75 per cent in all. This general provision was and is 
necessary for the adequate protection of the revenues 
against under-valuations. On the other hand, there is 
a further provision that duty in no case shall be assessed 
upon a value less than the entered value. The result 
of the two is that while the case is on appeal before the 
Board of General Appraisers the importer who brings 
in more merchandise of the same character is literally 
between the devil and the deep sea. If he enters his 
merchandise at the lower value which he claims is 
correct, and his contention is finally held invalid, all 
his entries are liable to both the increased and the 
additional duties described above. On the other 
hand, if he makes an entry at the valuation claimed by 
the appraisers, and their contention is finally held in- 
valid, he can get no rebate but must pay with respect 
to all the entries upon a value not less than the entered 
value. In attempting to relieve the harshness of this 
situation Congress has thrown upon the Secretary of 
the Treasury a responsibility which in a modified form 
has been tried before and abandoned, and which will 
very likely lead to many charges of favoritism and 
undue influence. It will tend to encourage every 
importer to place a low valuation upon his merchandise, 
contest by appeal all such increases as may be made by 
the local appraisers, file the required certificate of good 
faith and due diligence, and hurry to the Secretary of 


the Treasury with a request that all his merchandise 
be allowed entry at the lower rate. Should that rate 
in the test case be sustained, the Secretary, or rather 
the Assistant Secretary in charge of the customs (for 
upon his shoulders will fall the burden of this Section) 
will then have to decide as to the good faith and general 
merits of the claims put forward by a number of impor- 
ters, altho he is without adequate machinery or time to 
hold hearings under oath in this regard. The amend- 
ment undoubtedly will cure the evil that sometimes 
but not very frequently occurs. Whether or not it 
will plunge the Treasury Department into worse evils 
is a question which cannot be answered without an 
actual experience of its administration. 

The next change appears in paragraph L, which is the 
paragraph authorizing appraisers in cases where mer- 
chandise is not actually sold or freely offered for sale 
in the open market of the country of exportation to 
ascertain the foreign market value by deducting from 
the actual selling price in the United States, the esti- 
mated duties, cost of transportation, insurance, and 
other necessary expenses, a commission not exceeding 
6 per cent, and profits not to exceed 8 per cent, and a 
reasonable allowance for general expenses not to exceed 
8 per cent. The Payne law allowed a maximum of 
8 per cent for both profits and general expenses. The 
Underwood bill is more liberal to the importer in this 
regard and allows a maximum of 8 per cent for each. 

Paragraphs M and N, relating to the duties of the 
appraiser and the general appraisers in re-appraisement 
cases, have been altered in a number of particulars. 
An important change is that requiring a fee of one dollar 
for carrying an appeal for re-appraisement to the Board 
of General Appraisers. The House Bill had provided 
that this fee should be payable " with respect to each 


appraisement objected to." This was stricken out by 
the Senate and in conference a compromise was reached 
to the effect that the fee should be " for each entry." 
While this is an improvement upon the old law, under 
which importers might appeal for re-appraisement to 
their heart's content without cost to themselves, it is 
not so effective as the House proposal, in view of the 
fact that some invoices and entries cover hundreds of 
sheets of paper and include thousands of items, all of 
which may have different values and classifications. 
The same criticism may be made of paragraph N, where 
the House provision limiting each protest to a single 
article or class of articles and to a single entry or pay- 
ment was stricken out by the Senate. It is not reason- 
able that an importer who makes an entry of one 
article of merchandise should be called upon to pay 
the same fee for appealing for re-appraisement or 
re-classification as an importer who appeals with 
respect to several hundred articles of merchandise 
which happen to be included in one invoice and entry. 
The requirement of a protest fee is a reform urged 
for years by the Treasury Department during all the 
recent administrations; it was recommended by the 
Denison Committee and also by the Appraisement 
Commission appointed by Secretary MacVeagh; and 
it was also recommended by most of the members of the 
Board of General Appraisers. The experts in the 
customs service confidently expect that the enormous 
mass of customs litigation will be more than cut in half, 
and that the dockets of the Board of General Appraisers, 
heretofore clogged with over one hundred thousand 
protests per year, will now be filled with only bona fide 
cases brought to test some real issue between the 
importer and the government. 


A second new provision bitterly opposed by customs 
attorneys and brokers is that " no agreement for a 
contingent fee in respect to recovery or refund under 
protest shall be lawful," and "compliance with this pro- 
vision shall be a condition precedent to the validity of 
the protest and to any refund thereunder," and further 
that "a violation of the provision shall be punish- 
able by a fine not exceeding $500, or imprisonment 
of not more than one year, or both." This change was 
also urged by the Denison Committee, and was sub- 
mitted to the Finance Committee of the Senate by 
Assistant Attorney Denison and by the present writer, 
with the approval of Secretary McAdoo. It is aimed 
at a grave abuse, amounting in the opinion of many 
to a scandal, caused by the general practice prevalent 
today of customs attorneys and brokers taking cases 
for importers upon a 50 per cent contingent fee basis. 
The practice has led not only to the fomenting of litiga- 
tion, but also (since the longer the litigation is dragged 
out, the better it is for the lawyer, but worse for the 
importer) to a situation in which the interests of the 
attorney and his client were diametrically opposed in 
the matter of pressing the case to a final conclusion. 

Paragraph M has been further amended so as to 
eliminate closed hearings before the Board of General 
Appraisers. At all such hearings the parties or their 
attorneys shall have opportunity to introduce evidence 
and to hear and cross-examine the witnesses for the 
other parties, and to inspect all samples and all docu- 
mentary evidence offered. This provision by itself 
would indicate that the procedure to be adopted by 
the Board of General Appraisers would be approxi- 
mately that of a Court or Judicial Tribunal; but it is 
also provided that evidence of persons whose attendance 
cannot be procured may be admitted in the discretion 


of the Board and that the Board is authorized to exer- 
cise both judicial and inquisitorial functions. The 
provisions of the bill as it passed the House indicated 
clearly that the Board was expected to be an appellate 
tribunal for appraisements, exercising independent and 
inquisitorial means of its own for ascertaining values. 
The House had adopted the theory, which has been 
heretofore followed, and which was urged in the report 
of the President's Committee (composed of Messrs. 
Denison, Loeb and Frankfurter) to investigate the 
Board of General Appraisers, that any appellate tri- 
bunal on appraisement matters should add to the stock 
of knowledge and evidential facts concerning values. 
The paragraph as it came from the Senate indicated an 
intention to turn the Board into a judicial body. The 
result reached in conference is obviously a compromise. 
The Board is clothed with some powers like those of a 
court, but is still authorized to exercise inquisitorial 
functions like a local appraiser or other administrative 
officer. The net result will probably be that the hear- 
ings before the Board will be conducted in the future 
much as they have been in the past. 

Another amendment (in paragraph N) is aimed to 
overcome the decisions of the Court of Customs Appeals 
in the Schwartz case, in which it was held that a 
domestic manufacturer who desired more protection 
for his product than the government was assessing, 
might import similar articles and protest because the 
rate or amount of duty assessed upon his merchandise 
was too low. The effect of this decision was to encour- 
age fictitious litigation, which will be prevented by the 
new language authorizing the filing of a protest if the 
importer is dissatisfied with a decision " imposing a 
higher rate of duty or a greater charge than he should 
claim to be legally payable." 


Importers should not feel, however, that the whole 
of these paragraphs has been turned against them, for 
there is one provision more favorable than the similar 
one in the old law, that relating to the time within which 
a protest must be filed. This period has been extended 
from fifteen days to thirty days after the final liquida- 
tion of the entry: and it should be noted that the 
" iniquitous " protest fee need not be paid for thirty 
days more, — a total of sixty days within which the 
importer may decide whether he desires to litigate 
with the Government or not. This period should easily 
suffice for all bona fide cases. 

Paragraph O has been amended to meet a court 
decision to the effect that collectors and appraisers 
were not entitled to examine importers and other per- 
sons regarding merchandise not directly before them 
for consideration and action. The new law provides 
that the officers may make such inquiries respecting 
goods " then under consideration or previously im- 
ported within one year." This change is clearly in 
line with the policy of strengthening the powers of the 
government wherever experience has shown such 
action to be necessary. There is also a slight amend- 
ment to make certain that the testimony of persons 
taken by the collector or appraiser in advance of the 
formal hearing shall be given consideration in subse- 
quent proceedings. While this was probably the intent 
of the old law, the language was not entirely free from 
ambiguity. The provision is especially useful in 
obtaining the evidence of masters and crews of vessels 
or other persons, whose later attendance at any given 
place in this country is difficult to obtain. 

The next paragraph (P) specifies the penalties for a 
refusal to attend when summoned, or to answer the 
authorized interrogatories. 


The changes here are two. The first substitutes a 
fine upon the recalcitrant witness varying from $20 to 
$500, for the former flat amount of $100. The second, 
more important, provides for the recovery by the govern- 
ment of the value of the merchandise in question from 
the witness if he is the owner, importer or consignee. 
The old law had provided only for forfeiture in such 
cases, and had not authorized a suit for value in in- 
stances where the merchandise might escape forfeiture 
by having actually entered into consumption. 

Slight alterations in language appear in paragraph Q, 
making clear the intent of Congress that the Secretary 
of the Treasury and the Board of General Appraisers 
are to have joint control over the publication of the 
decisions of the Board, either in full or by means of 
abstracts. A more significant change, however, is 
found in a new phrase requiring the Board to insert 
in its decisions " a statement of facts upon which the 
decision is based." This amendment will not affect 
classification cases at all, as the present practice of the 
Board is to include such a statement; but it will make a 
vital change (and greatly for the better in the opinion 
of the writer) in all re-appraisement cases. Heretofore, 
the General Appraisers, in reporting such cases, have 
not stated the facts which led to their decisions. In 
consequence the decisions were almost never of benefit 
in assisting either the local appraisers or the importers 
in arriving at correct values for later importations of 
similar merchandise. 

Another amendment, somewhat similar to that found 
in paragraph P, appears in paragraph T, whereby the 
burden of proof is thrown upon the defendant in suits 
for value, just as the burden is already upon him in 
forfeiture cases. The only difference between the two 
types of proceedings is that in one the merchandise is 


actually seized, whereas in the other it has escaped 
seizure by having entered into consumption. As 
recovery by the government in each class of case is 
predicated upon fraud, it seems entirely proper that 
the defendant who has been astute enough to get his 
goods away from the clutches of the Customs officers 
should not thereby be placed in any better position than 
a brother importer who has not had that good fortune. 

Paragraph U is one of the new provisions, originating 
in the House bill, that caused much adverse comment 
both in this country and abroad. In its original form 
it authorized the Secretary of the Treasury to exclude 
from entry merchandise sold or shipped by foreigners 
who declined to submit their books pertaining to values 
or classifications to a duly accredited officer of this 
country. The Senate struck out the paragraph (which 
was wholly new) in its entirety. In conference a 
substitute was adopted authorizing the Secretary to 
levy an additional duty of 15 per cent upon all such 
merchandise, with a proviso, however, that such addi- 
tional duties shall not be imposed upon merchandise 
from foreign countries where there exists legal machin- 
ery for punishing false swearing upon invoices or 
statements of costs in connection with the consular 
certification thereof. As thus enacted the paragraph 
gives the Secretary a power (altho not a very extensive 
one) which he will certainly need if the ad valorem 
system is not to break down of its own weight. It 
will also tend to hasten the day when adequate penal- 
ties for perjury committed abroad with reference to 
exported merchandise can be inflicted upon the guilty 
parties. At the present time there are very few coun- 
tries where such is the case (possibly one or two in all). 

Paragraph V, as framed in the House, provided for 
the same penalty of exclusion for the merchandise of 


importers in this country who refused to open their 
books. This also was stricken out by the Senate, and 
finally modified in conference to a penalty of 15 per 
cent to be imposed at the discretion of the Secretary. 

To conclude, the new law is clearly designed to 
protect the government and assist its officers in collect- 
ing the revenues justly due. The burdens imposed 
upon the honest importer who desires to comply with 
both the spirit and the letter of the law have not been 
greatly increased. It is true that he must make a 
statistical list of his imports, but the forms will be 
prepared for him by the Department, and the task 
should prove little if at all more exacting than the 
present requirement that every invoice shall contain 
an accurate detailed description of the merchandise 
covered. True, also, he will have to take far greater 
pains to make sure that his entries are made and verified 
by a person with actual personal knowledge of the facts 
therein recited. Under the old system, such entries 
were ordinarily made by a subordinate who, to quote 
the report of the Appraisement Commission " supports 
the integrity of the invoice by his declaration to the 
best of his knowledge and belief, without having the 
faintest semblance of knowledge or the frailest founda- 
tion for belief." This situation cannot exist under the 
new law unless both the principal and his agent are 
prepared to assume severe liabilities in case im- 
proper entries are made. Drastic provisions and heavy 
burdens, however, are prepared for the dishonest 
importer, who will be made to feel much more keenly 
than has heretofore been the case that the law is meant 
to be obeyed and not to be trifled with. 

James F. Cuetis. 

Boston, Mass.